The professional responsibilities of law professors: The scope of the duty of confidentiality, character and fitness questionnaires, and engagement in governance

Journal of Legal Education

Volumn 56, Issue 1, 2006, Pages 106-121

  Needham, Carol A ^a  

^a SAINT LOUIS UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 33751557777     PISSN: 00222208     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (62)

1. For example, after the client has revealed information during an on-the-record interview with a reporter, the information which is published or broadcast has become generally known and is no longer protected by the duty of confidentiality.
2. The exceptions articulated in the confidentiality provisions adopted in many states allow, and in some states, require a lawyer to reveal information to prevent reasonably certain death or substantial bodily harm, to prevent the client from committing certain crimes or frauds, or mitigate their effects, to respond in certain controversies involving the representation or to comply with other law or court order. None of these exceptions are particularly relevant to the academic's situation.
3. Mass. R. 1.9 (c).
4. Virginia's Rule 1.9 (c)(I) provides that a lawyer cannot "use information relating to or gained in the course of the representation to the disadvantage of the former client."
5. Allan W. Vestal, Former Client Censorship of Academic Scholarship, 43 Syracuse L. Rev. 1247 (1992).
6. This discussion reflects conversations I have had with scholars regarding whether or not their writing violates their duty of confidentiality to their former clients. Withholding the identity of those scholars is a considered choice. I would welcome hearing from any readers who would like to relate their observations and experiences in connection with these or similar concerns.
7. Ill. St. B. Assoc. Advisory Opinion on Prof'l Conduct, No. 00-01 (Oct.2000).
8. "It is dangerous and difficult to set out a valid general rule in a sensitive area where so little has been said before, but it seems to me that if a lawyer does not reveal a client's private affairs, use a client's proprietary information, or materially harm the client, then the lawyer should usually be permitted to re-use information gained in the course of representing an earlier client without the earlier client's consent." Roy Simon, Simon's New York Code of Professional Responsibility Annotated (New York, 2006).
9. Proposed N. Y. R. 1.6, available on the Committee on Standards of Attorney Conduct [COSAC] section of the New York State Bar Association website, available at 〈http://www.nysba.org/content/contentgroups.COASC_report/ COSAC_proposal_rules_of_professional_conduct.htm〉 (last visited on July 27, 2006). (The language of the December 30, 2003 draft is on file with the author.)
10. "A lawyer's use of a hypothetical to discuss issues relating to the representation with persons not connected to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client." Id. Proposed Cmt. 4 to Proposed N. Y. R. 1.6.
11. Restatement of the Law Governing Lawyers § 60 cmt. j (2000).
12. Peter A. Joy, The Ethics of Law School Clinic Students as Student-Lawyers, 45 S. Tex. L. Rev. 815 (2004) (arguing that students who are held to the same ethical standards as lawyers in their clinic work enhances their learning experience);
13. James E. Moliterno, In-House Live Client Clinical Programs: Some Ethical Issues, 67 Fordham L. Rev. 2377 (1999);
14. David F. Chavkin, Am I My Client's Lawyer?: Role Definition and the Clinical Supervisor, 51 SMU L. Rev. 1507 (1998) (clinical faculty's ethical obligations);
15. Alexis Anderson, Arlene Kanter, and Cindy Slane, Externships and Ethics: A Primer on Confidentiality, Conflicts and Competency Issues in the Field and in the Classroom, 11 Clinical L. Rev. 473 (2004).
16. Deborah Rhode, The Professional Ethics of Professors, 56 J. Legal Educ. 70(2006).
17. Elizabeth Chambliss, The Scope of In-firm Privilege, 80 Notre Dame L. Rev. 1721 (2005);
18. Elizabeth Chambliss and David Wilkins, The Emerging Role of Ethics Advisors, General Counsel and Other Compliance Specialists in Large Law Firms, 44 Ariz. L. Rev. 559 (2002).
19. Deborah Rhode, Moral Character as a Professional Credential, 94 Yale L.J. 491 (1985).
20. Rhode's argument that the resources spent on the character and fitness review should be redirected to stronger efforts to police post-admission professional misconduct remains relevant today, more than twenty years after its publication. See also Deborah Rhode, In the Interests of Justice (Oxford, 2000);
21. Stanley S. Herr, Questioning the Questionnaires: Bar Admissions and Candidates with Disabilities, 42 Vill. L. Rev. 635, 658-59 (1997) (observing that "there is something dysfunctional with a system that throws its net so wide that only a handful of candidates answer 'yes' to questions that epidemiological studies suggest would require hundreds of candidates to affirm their past or present disability.");
22. Joel Jay Finer, Gay and Lesbian Applicants to the Bar: Even Lord Devlin Could Not Defend Exclusion, Circa 2000, 10 Colum. J. Gender & L. 231 (2001);
23. Jennifer McPherson Hughes, Comment, Suffering in Silence: Questions Regarding an Applicant's Mental Health on Bar Applications and Their Effect on Law Students Needing Treatment, 28 J. Legal Prof. 187 (2003).
24. Ann Hubbard, Improving the Fitness Inquiry of the North Carolina Bar Application, 81 N.C. L. Rev. 2179 (2003) (advocating elimination of bar application questions regarding diagnosis, treatment, or impairment from mental disorders, and asking only about applicant's behavior and conduct. Further inquiries would be made if the applicant's recent conduct "reveals a trail of disarray, delinquency and professional dysfunction.");
25. Jon Bauer, The Character of the Questions and the Fitness of the Process: Mental Health, Bar Admissions and the Americans with Disabilities Act, 49 UCLA L. Rev. 93 (2001) (discussing the impact of the ADA on the rejection of bar applicants on the basis of disabilities).
26. See, e.g., Robert P. Schuwerk, The Law Professor as Fiduciary: What Duties Do We Owe to Our Students? 45 S. Tex. L. Rev. 753 (2004);
27. John Dzienkowski, Character and Fitness Inquiries in Law School Admissions, 45 S. Tex. L. Rev. 921 (2004).
28. "Does the applicant's record raise questions regarding the applicant's character or indicate a lack of integrity or trustworthiness?"
29. "Has the applicant engaged in any behavior, whether or not it was made part of applicant's record, that reflects unfavorably on his or her character or fitness to practice law?"
30. "Is there any additional information of which you are aware that might impact the Board's determination of this person's character and fitness?"
31. The revised form asks: "Do you have any additional information that would adversely reflect on the character and fitness of the applicant? In addition, is there any member of your faculty or staff, or any student, who you believe could provide relevant information that adversely reflects on the applicant's character or fitness?"
32. See, 〈http://www.judicial.state.ia.us/regs/barinfo/barexamapp. asp〉 (last visied July 31, 2006). The form now asks, "Does the applicant's record indicate a lack of integrity or trustworthiness?"
33. A Model for Dialogue: Bar Examiners and Law Schools developed by the Bar Admissions Committee of the A.B.A. Sec. of Legal Educ. & Admissions to the Bar (June 1998, updated August 2002), available at 〈http://abanet.org/ legaled/publications/onlinepubs/model_for_dialogue〉 (last visited July 25, 2006).
34. Under the proposal, additional post-admission supervision and monitoring would be imposed on those applicants who satisfy all other requirements for admission but "whose recent history demonstrates rehabilitation from past chemical abuse or dependency, treatment for a mental health condition or other conduct or condition that, if it should recur, would impair the applicant's ability to practice law or pose a threat to the public."
35. Dugas v. City of Harahan, Louisiana, 978 F.2d 193 (5th Cir. 1993) (holding that, as a matter of Florida law, an absolute privilege protects employers' communications with the Board of Bar Examiners and reversing a $100,000 damages award for defamation).
36. 157 Ill. App. 3d 969, 110 Ill. Dec. 72, 510 N.E.2d 1103 (1st Dist. 1987) (holding that communications with the state bar character and fitness committee are absolutely privileged).
37. 209 F. Supp. 866 (M.D. Penn. 1962) (finding an absolute privilege for those complying with a request for information related to an applicant's character and fitness to be supplied to the Board of Law Examiners).
38. See, e.g., Georgia State Faculty Handbook, Section 312.04.03 (Consultancies with State Agencies), available at 〈http://www2.gsu.edu/ ~wwwfhb/fhb.html〉 (last visited July 25, 2006).
39. Michael A. Olivas, The Law and Higher Education: Cases and Materials on Colleges in Court (Durham, N.C., 2006).
40. One difficulty in conducting a complete study is that not all private universities make publicly available their faculty handbooks or their policies on conflicts.
41. 35 U.S.C. § 200-12, allowed universities to assert property rights by patenting inventions which arise from research conducted with federal funds.
42. See, e.g., Natalie Patton, Most UNLV Instructors Flunk Minimum Class Load Requirements, Las Vegas R. J., May 16, 2003, at 1A (reporting on a study finding that half of full-time UNLV instructors did not meet the university's requirement of teaching three classes). Nevada state legislators were not persuaded that other faculty responsibilities should count towards professors' class load.);
43. David Folkenflik, Time v. Money: Legislators Want More Teaching Time for Money They Give to Universities, Balt. Sun, Dec. 19, 1994, at 1A (reporting that the Maryland legislature withheld $21.5 million from the budget of the University of Maryland College Park pending an evaluation of what professors arc doing with their time and resources).
44. The Ohio State University Official Proceedings of the 1414th meeting of the Board of Trustees, Resolution 2006-3, July 8, 2005, available at 〈http://trustees.osu.edu/Minutes/2006/Minutes%20-%20July%208,%202005. pdf〉 (last visited July 20, 2006).
45. Id. at 131.
46. See Financial Conflict of Interest: Objectivity in Research posted on the National Institutes of Health Office of Extramural Research, available at 〈http://grants.nih.gov/grants/policy/〉 (last visited July 31, 2006). The regulations require all investigators to verify that their use of grant money from those agencies complies with a detailed series of requirements.
47. The term "investigator" includes those individuals who are "responsible for the design, conduct or reporting" of research funded by the National Science Foundation or the Public Health Service.
48. 68 Fed. Reg. 172, 52783, 172, 52784 (Sept. 5, 2003).
49. The other elements included: "Designating a compliance officer and compliance committee; conducting effective training and education; developing effective lines of communication; conducting internal monitoring and auditing; enforcing standards through well-publicized disciplinary guidelines; and responding promptly to detected problems undertaking corrective action, and reporting to the appropriate Federal agency." 68 Fed. Reg. 172, 52783 (Sept. 5, 2003).
50. Id. 70 Fed. Reg. 71312-71320 (Nov. 28, 2005).
51. Yale University Faculty Handbook, available at 〈http://www.yale.edu/ provost/html/facultyhb.html〉 (last visited July 25, 2006).
52. Duke University, Office of the Provost, available at 〈http:// provost.duke.edu/units/facaffairs.html〉 (last visited July 25, 2006) (follow "faculty handbook" hyperlink).
53. Id. The rest of the paragraph discusses compliance with requirements for government-sponsored research and Duke's conflict of interest policy.
54. Cornell University Conflicts Policy (Ithaca Campus), availabe at 〈http://web.cornell.edu/UniversityFaculty/docs/2004ConflictsProcess/ CUConflictsPolicy.pdf〉 (last visited July 25, 2006).
55. Office of Academic Affairs Policies and Procedures Handbook, available at 〈http://oaa.osu.edu/handbook/tc.html〉 (follow "conflict of commitment" hyperlink) (last visited July 25, 2006).
56. Office of Academic Affairs Policies and Procedures Handbook, http://oaa.osu.edu/handbook/tc.html Id.
57. Donna R. Euben, Faculty Employment Outside of the University: Conflicts of Commitment (March 5, 2004), available at 〈http://www.aaup.org/Legal/ info%200utlines/comconflicts.htm〉 (last visited July 25, 2006). Euben wrote this paper in her role as staff counsel for the National Association of College and University Attorneys.
58. Georgia Faculty Handbook, sect. 312.04.02 (consultancies with Non-State Agencies), available at 〈http://www2.gsu.edu/~wwwfhb/fhb.html〉 (last visited July 25, 2006).
59. Office of Academic Affairs Policies and Procedures Handbook, available at 〈http://oaa.osu.edu/handbook/tc.html〉 (follow "conflict of commitment" hyperlink) (last visited July 25, 2006).
60. See, e.g., William J. Drummond, Don't Ask, Don't Tell: Evolution of the UC Conflict of Commitment Policy in the Research and Occasional Paper Series of the Center for Studies in Higher Education at the University of California, Berkeley No. CSHE. 12.03 (Apr. 2003), available at 〈http://cshe.berkeley. edu/publications/papers/papers/ROP.Drummond.12.03.pdf〉 (last visited July 25, 2006).
61. William J. Drummond, Don't Ask, Don't Tell: Evolution of the UC Conflict of Commitment Policy in the Research and Occasional Paper Series of the Center for Studies in Higher Education at the University of California, Id. at 2.
62. "Psychological contract" describes the bond most employees have with their employers which is based upon the individual's beliefs about the mutual obligations between the two. See, e.g., Katherine V. W. Stone, From Widgets to Digits 88-93 (Cambridge, 2004).